Key Legal Fight Shaping Up Over The Legality Of DMCA Abuses

from the stay-tuned dept

You may remember that, back in January, we wrote about a blog fight between two women with very different views on childbirth, which then descended into a ridiculous copyright fight. I won't rehash all of the details, but the short version was that as a part of this fight, Gina Crosley-Corcoran posted a photo of herself giving the middle finger, and in posting it she told her rival, Dr. Amy Tuteur, it was "something you can take back to your blog and obsess over." Tuteur reposted the photo to her own blog, along with a blog post about Crosley-Corcoran. Crosley-Corcoran then yelled copyright infringement, at which point Tuteur's husband (a lawyer) explained to Crosley-Corcoran's lawyer what fair use meant (and also what an implied license is). And then... DMCA takedown notices started flying, leading Tuteur to change her web host twice. Furthermore, Crosley-Corcoran bragged about using the DMCA takedowns to silence Tuteur and get her blog taken down -- and (according to Tuteur's lawyer) Crosley-Corcoran's own lawyer admitted that she had no legitimate copyright claim.

As we noted in our post, if there ever were a case to explore the punishment for violating the DMCA, this seemed like a good one. The key to this, of course, is 512(f) of the DMCA, which says that if you make a material misrepresentation in a DMCA takedown, you can be liable for damages, including costs and attorney's fees. However, at the same time, we noted why it's almost impossible to get someone punished for a bogus DMCA takedown. Still... the evidence on this case seemed so extreme, with Crosley-Corcoran more or less telling the world that she was abusing the DMCA specifically to silence Tuteur, we thought it actually had a chance.

But then, a month ago, the judge in the district court in Massachusetts made a bizarre ruling rejecting the 512(f) claim in such a way that suggested no 512(f) claim would likely ever survive. It was bizarre in a few different ways. As Eric Goldman noted in his discussion of the ruling, the court was only supposed to be looking at a separate issue, involving the jurisdiction of the court over the case, but simply chose to go ahead and effectively rule on the key parts of the case, even though neither party had briefed the key issues. Among other things, the court focuses just on the first DMCA notice, and not the subsequent ones or the blatant statements of plans to keep using the DMCA to keep Tuteur's entire blog offline. Goldman calls it "the most bizarre Article III analysis I've seen" because even though the court says that Tuteur has a plausible fair use and implied license claim, that doesn't matter, because the court argues that the DMCA filer doesn't need to pay attention to that:

there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission

That's not actually what the law says. And it's not actually what other courts that have ruled on this issue have said. At the very least, the court, recognizing that no briefs had been filed on the subject, gave Tuteur 21 days to respond. She did so with a long and detailed filing that reminds the court that this isn't about just that one DMCA filing, but a lot more. And also highlighting that (a) the DMCA isn't limited to just cases where things are posted without permission and (b) the other cases have said that a filer needs to take fair use into account. As her filing notes:

If fair use and license can be ignored when filing a DMCA takedown notice, persons like the Defendant (and, indeed, far more powerful organizations), would have a safe haven to freely muzzle their critics by literally chasing them off the Internet. A victim – who did nothing unlawful and whose acts were authorized by the Copyright Act – would be left without recourse and without a voice.

On the same day, the EFF along with Harvard's Digital Media Law Project also filed an amicus brief explaining why the court is simply wrong about the DMCA abuse clause. After listing out four different cases that came to a different conclusion than the judge in this case, it notes:

The DMCA requires the copyright owner issuing a takedown notice to affirm that she has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). “The fair use of a copyrighted work . . . is not an infringement of copyright,” 17 U.S.C. § 107. An allegation that a copyright owner issued a takedown notice knowing that the use in question was in fact authorized by law, and/or that she had not formed a good faith belief to the contrary is, therefore, sufficient to state a claim under Section 512(f).

This is the fundamental mistake that the court made. The DMCA doesn't say that you can only be punished if the you didn't have permission -- but if the use is not authorized by the law. And, the law clearly states that fair use is not infringement. Thus, fair use is authorized use even if it doesn't involve permission.

Crosley-Corcoran's lawyers apparently were not at all pleased to see the EFF and the DMLP jump in on this case, and proceeded to quickly oppose the entire brief, arguing that it shouldn't be allowed in the case. The reasoning? Apparently, that Tuteur has good enough lawyers already and doesn't need any support from the likes of the EFF or Harvard:

It is rare – perhaps sadly so – that one has both the opportunity and a reason to praise the litigation skills of opposing counsel. This, then, is something of a unique opportunity. Attorney Beck, a former partner with the national law firm Foley & Lardner LLP, and Attorney Riden, a former senior counsel to Foley & Lardner, have, collectively, almost 40 years of sophisticated litigation experience. Among his many accolades, Attorney Beck is AV rated by Martindale-Hubbell, a Chambers recognized attorney, a Massachusetts Super Lawyer, a Top 100 New England attorney, and a nationally recognized authority on trade secret and non-competition law. Attorney Riden is a Massachusetts Super Lawyer, a recipient of the Best Lawyers designation, a frequently quoted legal authority, and a former appellate law clerk. They are, in short, eminently qualified to represent the interests of Plaintiff in this action and to fully brief the issues raised by this Court’s Order of April 10, 2013, requiring them to show cause why the present action should not be dismissed.

This being the case, the addition of two more legal Goliaths will do little to advance this Court’s understanding of the issues raised (which do not seem to be so complex as to cry out for the assistance of non-parties), and instead will only needlessly multiply the costs of an already overly-costly litigation. For the reasons stated herein, Defendant Gina Crosley-Corcoran respectfully requests that the non-party requests for leave to file an amicus brief be denied.

There is a legitimate argument to be made that, especially at the district court level, if an outside party filing an amicus curiae brief that is only repeating the same arguments as a party in the case, it is not appropriate. However, it does seem that the EFF/DMLP briefing does raise a few different key points than Tuteur's brief, which focuses much more on the specifics of her situation, while the amici brief covers much more generally the policy issues behind section 512(f) and more of the legal history there. It seems, especially given the court's apparent misreading of the law in its initial order, that it makes sense to include the brief.

Finally, on Thursday, Crosley-Corcoran filed her response to Tuteur's argument, in which she claims (of course) that "the court had it right the first time." Except, the law is pretty clear and this filing has it wrong. I don't really see how anyone can argue that. From there, they make two key arguments. The first is that, despite the fact that Tuteur ended up having to switch hosts twice, neither switch actually involved a host taking down the content in question, and thus she cannot claim any damage from the DMCA takedown notices, bogus or not. Specifically, the filing argues that Tuteur chose to move from the first host, BlueHost, after she sent a counternotice and after BlueHost had said it would take no action (though, this is after BlueHost had warned her earlier that if she didn't remove the content, it could close down her account). It then says that the move away from the second host, DaringHost, was because the site was getting too much traffic, and the owner of DaringHost, supplied a deposition stating that he had explained this to Tuteur.

This absolutely does weaken Tuteur's 512(f) claim, because it certainly decreases the damages caused by the takedown notices. But it still does ignore the two key points pushing back on this: Crosley-Corcoran's lawyer admitting that there was no legitimate copyright claim and Crosley-Corcoran herself bragging publicly about using the DMCA to silence Tuteur.

Separately, the filing goes back to the same point that we've discussed before about why it's so difficult to win a 512(f) case: the use of the "subjective bad faith" standard. Of course, one would think that Crosley-Corcoran's own statements would pass that bar. However, the filing insists that her lawyers took fair use into account, and simply decided that Tuteur's use didn't qualify (which seems to go against what Tuteur claims Crosley-Corcoran's lawyers told her). Crosley-Corcoran's filing conveniently ignores all of that and says, basically, "of course we considered fair use and rejected it" so the 512(f) claim is dead.

If that's allowed, then that effectively makes 512(f) a useless law, because all anyone has to say is they considered it before sending a bogus DMCA takedown and they can get away with it. That's clearly not what Congress intended with the law, otherwise why include it at all?

Either way, this case is shaping up to be a key one to watch in determining whether or not there are any teeth at all (even little ones) associated with 512(f) in providing a tool for those who have been attacked with bogus DMCA filings.

Reader Comments

If the punishments for filling bogus DMCA requests did exist and were enforced automated takedown systems would be rendered useless. Google would see the number of requests take a nose dive if this started happening right now since they do have some checking process.

Also, the fact that there is no way to counter the notice before the content is taken down is a very problematic issue. Suppose there was no punishment for bogus notices but the service provider could only take down the content after trying to contact the affected party (and given some time for the affected party to respond). If there was a counter notice the original party filling the complaint would have to either back off or take it to the courts where damages could be assigned to the losing part.

So there are very distinct problems here:

- the lack of effective punishment for bogus DMCA notices
- lack of due process (ie: the ability to counter a DMCA notice sent before the content is taken down)

Any of those could have prevented this from happening or reaching the courts.

Re:

to my mind, you forgot a couple of things Ninja

1) that no judge should be sitting on let alone ruling on a case when he/she has not got sufficient knowledge of the laws relating to the case

2) that if Congress had done what they should have done in the first place and covered all the bases when introducing laws, rather than being more worried about catering for the industries concerned and keeping the coffers full with 'lobbying and campaign contributions', perhaps there would be far fewer problems over all??

Re: Re:

1- Agreed. But just taking it to the courts would help already.

2- Again agreed. But even then they could have left open loopholes or issues that could be abused specially since times change, technology change. There's no excuse to their inaction when it's clear that there are so many abuses.

Re: Re: Re: Oh, boy! Two idiots, one anomaly, and Mike blames DMCA.

but but but this is a tool that will end piracy and corporations need to be able to use it in wild ways. Only corporations have the rights to copyrights, and can't be expected to be correct in any way when they file them.

I mean its not like you could confuse a tv show with a book... oh wait. Homeland.

That sword cuts both ways

If the DMCA is fixed so that there are real penalties for bogus takedowns, then everyone wins.

If the DMCA is not fixed, and furthermore, there is precedent that you can get away with abusing the system, then that abuse can work both ways. I can imagine that there might exist people who would decide to turn the tables and start using DMCA abuse against the copyright lovers who created the broken system and see no harm in bogus DMCA takedowns. After all, if nobody is harmed by bogus DMCA takedowns, they why should copyright owners complain if they are also not harmed by a flood of bogus DMCA takedowns?

Interesting fight, but...

I have a longer post to say about this, but I think the crux of the matter comes down to this:

DMCA doesn't remove any content directly. Tuteur's problem is that the hosts in question were willing to leave the blog up, but Tuteur decides to move or remove it. The only reason the site is offline is because of Tuteur's choices. A counter notice to a DMCA claim, handed to the host, removes them from liability (provided of course the counter notice makes some sense). At that point, it's a straight copyright fight between the two parties. This is exactly what the safe harbor is suppose to be used for, to protect hosting companies from getting dragged into their customer's litigation problems.

The bizarre ruling rejecting the 512(f) claim actually appears clearly on point here. Fair use is an affirmative defense, and one that would be used in a counter notice sent to the copyright holder (and the hosting company). Since fair use is not an absolute (but a matter of judgement, often to be resolved in a court of law), the matter would then go into normal copyright litigation. The copyright holder did not in any manner violate 512(f).

512(f) is there specifically to handle people claiming to hold copyright on something they do not own, essentially a bad faith claim of copyright ownership where none exists. As Crosley-Corcoran is certainly the rights holder for the image, there is little come back that fits into 512(f).

I think the problem here is that you are confusing a distasteful act by the copyright holder with a lie. The requirements for 512(f) were created very narrowly, and the first court appears to have interpreted that just fine.

Re: Re: Interesting fight, but...

You are automatically granted copyright on any picture you take. If you had the grower on a picture you would have copyright on it. Most people on the internet do not care at all about their own copyrights and proteccting it.

However, in this case, the use by miss Tuteur seems to have been for "reporting" purpose. Granted, appealing to peoples imagination on how flipping the bird looks like might be enough, but if she really felt she needed it to make her point...

This ruling is unquestionable a challenge to a lot of the uses in this blog and a lot of other "non-authorized" journalistic work. Essentially this ruling may be used as backing for far more nasty censorship and a lot of "funny" legal threats for this site to post.

Re: Re: Re: Interesting fight, but...

Essentially this ruling may be used as backing for far more nasty censorship and a lot of "funny" legal threats for this site to post.

There would be no such censorship. As Mike has noted, fair use is not infringement. A DMCA notice that a use is infringement could easily be answered by "no, it's fair use for these reasons". Noting of course that fair use is based on a number of factors, and you could still end up in court for them, regardless of the DMCA. For purposes of a DMCA notice, a simple "no, it's fair use" would be enough to legally satisfy the requirements and make your hosting company generally happy.

This would in no way stop "non-authorized" uses. It would however potentially force some sites to actually deal with DMCA complaints head on, as any fair use of copyright material might face such a notice. It would still be better than receiving a direct "we are suing you for copyright violations" letter, which would be equally valid if DMCA was not in place.

Re: Interesting fight, but...

512(f) is there specifically to handle people claiming to hold copyright on something they do not own, essentially a bad faith claim of copyright ownership where none exists. As Crosley-Corcoran is certainly the rights holder for the image, there is little come back that fits into 512(f).

That's not what the law says. You are wrong. It says you violate 512(f) if you "misrepresent that the *activity* is infringing." If they wanted it to say that you misrepresent that you're the rightsholder, they would have said that. But they do not.

And, the Copyright Act clearly states that "fair use is not an infringement." Thus, a fair use is not infringing. Thus, it is clear from the statute that misrepresenting if something is fair use is a violation of 512(f) contrary to what you say above.

So I don't see where you get your claim that 512(f) is only for cases where there is a claim on a copyright they don't own. The law doesn't say that, and the courts haven't interpreted it that way at all.

Re: Re: Interesting fight, but...

if you "misrepresent that the *activity* is infringing."

the Copyright Act clearly states that "fair use is not an infringement."

The problem you have with that in the face of 512(f) section is that fair use is something that comes with judgement. 512(f) requires specific bad faith, which does not exist here. The copyright holder is not qualified to determine fair use, as it is a judgement call based on a number of factors. It is not a hard and fast rule. The law says

"In determining whether the use made of a work in any particular case is a fair use the factors to
be considered shall include"

It would be hard to a layperson to be able to determine the status. As a result, the requirements of 512(f) are not met for the purposes of assigning a misrepresentation. The copyright holder would have to somehow be able to time travel and read a future judge's mind to figure out if something is truly 100% fair use. After all, in the case of the image, the use is 100%, which would hit 107 section 3, the amount of the work used. There is enough there to raise doubt in relationship to a copyright image, used integrally.

So I don't see where you get your claim that 512(f) is only for cases where there is a claim on a copyright they don't own.

It isn't only for that (and I made no such claim), but it is specifically there to cover that situation. It would also cover things like falsely claiming infringement when you have knowingly signed a license to someone, as an example. It is the section under which claims made falsely by someone who is not the copyright holder would be dealt with.

Can you explain to us how a copyright holder can, with 100% certainty, note that something is absolute and beyond all doubt fair use in all cases?

Re: Re: Re: Interesting fight, but...

Bragging on her Facebook about how she'll send DMCA notices until the blog is shut down is not evidence of bad faith? Really?

The copyright holder is not qualified to determine fair use, as it is a judgement call based on a number of factors. It is not a hard and fast rule.

You're right that fair use isn't a hard and fast rule, but that's a different issue. I was just responding to your claim that 512(f) is only about direct misrepresentation of who holds the copyright. That's wrong.

Now you're just moving the goalposts because you were shown to be wrong.

Of course no one ever said that the copyright holder has to affirmatively determine if something is fair use. Just that they need to take it into account. So even in your moving the goalposts you get the facts wrong.

It isn't only for that (and I made no such claim)

Actually, you did. You claimed that the reason that 512f was there was for one specific case. I told you you were wrong. And now you're pretending you didn't say what you said.

Really now?

Can you explain to us how a copyright holder can, with 100% certainty, note that something is absolute and beyond all doubt fair use in all cases?

Re: Re: Re: Re: Interesting fight, but...

Bragging on her Facebook about how she'll send DMCA notices until the blog is shut down is not evidence of bad faith? Really?

It could be a sign of anger, and nothing more. I think you are confusing anger with specific bad faith.

I was just responding to your claim that 512(f) is only about direct misrepresentation of who holds the copyright. That's wrong.

I didn't claim that, so I am not sure what you feel you corrected. I stated only that "512(f) is there specifically to handle people claiming to hold copyright on something they do not own", but that does not limit to ONLY that purpose.

Actually, you did. You claimed that the reason that 512f was there was for one specific case. I told you you were wrong. And now you're pretending you didn't say what you said.

See above. You are reading into my quote as if it is limiting, but it is not. The clause is not limited to only "who owns the copyright", but it is exactly the clause that would be use for someone making such a false claim. Why are you going on about this? You misread it (and sorry if I wasn't precise enough for you).

No, the point is that, absent absolute certainty that something is fair use, that negates using that against 512(f). If as a rights holder I have no way to be entirely certain, my DMCA claim would be in good faith even if there was potentially a valid fair use claim, because there is no way to be certain. Bad faith would require the copyright holder to be absolutely certain that the use was permitted, licensed or not a violation under the law and still issue a DMCA. Fair use, being a less than certain standard, is not likely to rise up to the level of 512(f), no matter how much you wish it would.

Consider the alternative, of someone receiving a DMCA notice, claiming fair use, and then using 512(f) to sue someone for damages. That would swing the copyright pendulum entirely in favor of the user and away from the rights holder, because if there was even the remotest possibility of fair use, the rights holder could not take the risk of sending a DMCA notice. That would make essentially every online use of a photograph online into maybe a legal landmine.

Re: Re: Re: Re: Re: Interesting fight, but...

I didn't claim that, so I am not sure what you feel you corrected. I stated only that "512(f) is there specifically to handle people claiming to hold copyright on something they do not own", but that does not limit to ONLY that purpose.

Re: Re: Re: Re: Re: Interesting fight, but...

"I didn't claim that, so I am not sure what you feel you corrected. I stated only that "512(f) is there specifically to handle people claiming to hold copyright on something they do not own", but that does not limit to ONLY that purpose."

Actually that's exactly how your comment reads. If that's not what you meant you shouldn't have used the word 'specifically'. In this context it is indeed a limiting statement.

Re: Re: Re: Re: Re: Re: Interesting fight, but...

I was more addressing why it was there to start with, that clause was put in specifically to deal with non-owners issuing DMCAs to get stuff taken down. It may also cover other things, but it is there to deal with that sort of a situation, putting significant fines in play for those who blatantly lie about having the copyright on something.

If it doesn't read right, I am sorry. This has entirely detracted from my original post, which seems not to have been addressed at all.

EFF's amicus brief should be given due consideration

As Lord Justice Salmon noted in Allen v Sir Alfred McAlpine & Sons Ltd [1968], "I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf." (Emphasis mine.)

"Impartially"?

I have the distinct impression that uninvited amicus briefs are hardly ever "impartial" in the colloquial sense of "disinterested" (I suppose Lord Justice Salmon meant the word in a different, legal sense, as in "not sharing a direct interest with either party of the case").

Re: Oh boy, oh boy

If the courts decide there is no punishment for false takedowns, well MPAA & RIAA prepare to be hoisted by your own petard.

I imagine many hosting providers would just ignore DMCA notices coming from some random webmail account (other than automated systems, if any). It only gets attention if it's from a domain that looks like a major publisher, record label, or movie studio. I'm just speculating here, but it just doesn't seem likely you could get a big player's content taken down by filing a bogus notice.

Re: Re: Oh boy, oh boy

I could be wrong, but my understanding is that ignoring a DMCA request would endanger your safe harbor protections. That is why we're always reading stories here about false DMCA filings. It is much safer for hosting companies to take things down and not take a chance.

Re: Re: Re: Oh boy, oh boy

It is much safer for hosting companies to take things down and not take a chance.

They would have to weigh the risks. What is the risk of ignoring a DMCA request? They could be taken to court for copyright infringement. Are they going to worry about getting sued because some random person asked them to take down The Avengers and they didn't? Or are they going to worry more about the possible consequences of taking down something a major movie studio is keeping track of based on a bogus takedown notice? These guys have shown a willingness to throw a lot of money around in court whether they're right or wrong, and service providers don't want to get anywhere near that.

Maybe they would contact the rights holder and ask them if the takedown notice is legitimate, but I doubt they would just take it down, as they do when the tables are turned.

Re: Umm

Well, the DMCA takedown mechanism isn't enforced by the government. It operates strictly as a 'carrot.' Basically, so long as ISPs follow the takedown procedure set forth in section 512 (including the ability of users to rebut and have material put back online again), the ISPs are shielded from legal liability.

If, OTOH, the ISPs choose not to follow the DMCA, they're not punished for it, but may, or may not, be found liable for their involvement in the underlying infringement, if there is one.

Generally ISPs don't want to conduct a thorough legal analysis for each takedown notice to determine if they'd be in trouble if they didn't comply, and they also don't want to conduct thorough legal analyses for everything users do with the ISPs' systems before the ISPs allow it to be done, to determine if they'd be in trouble should they refuse to accept takedowns generally.

But any liability facing ISPs here is civil and as a part of the overall infringement suit against the user. The government doesn't get involved (except for the courts, in their normal capacity, of course).

Re: Re: Umm

There is a legitimate argument to be made that, especially at the district court level, if an outside party filing an amicus curiae brief that is only repeating the same arguments as a party in the case, it is not appropriate

Doesn't bother me a bit given that the entertainment/copyright indsutries have been dogpiling their massive resources together for a decade or more to try to push their agendas through (when they aren't hiring "morally pure" entities like Righthaven and Prenda - and there will be more like this exposed soon enough - to do their dirty work). That the people fighting for the common good are finally uniting together as well just balances the equation as far as I am concerned.

Let me help you

This is Gina Crosley-Corcoran. Since there are two facts here that people are getting wrong, let me help you...

My lawyer did NOT say that I didn't have a copyright case. My lawyer said that I DID have a, quote, "slamdunk" copyright case. Her affidavit saying so was already filed with the court, but apparently everyone would prefer to believe the plaintiff's flat out fabricated lie on that point. The court has evidence proving I filed my DMCA in good faith on advise of legal counsel.

Second point: I did not "brag" about my DMCA taking down her site. In fact, the court has the evidence (submitted by her side, ironically) showing me saying that I, quote, "wish I could take credit, but this was more than me." I knew then that the host did not take action to remove her site because of my DMCA, and she knew it too.

Thanks for letting me clear that up (if you have any interest in the actual publicly available facts anyway.) I can't wait for you to see what's being filed next. :)

Re: Re: Let me help you

There are inaccuracies being spouted here, which seems strange since the author here clearly has access to the evidence filed as public record. For some reason, it's being ignored, which leads me to believe that this is not about reporting the facts of a case but about personally attacking me. If you claim to be reporting on the facts particular to this case, then do your homework. Continuing to report misinformation makes you look non-credible.

I have no incentive to link to my blog since none of you can read it anyway. I would not benefit from the traffic,

Re: Re: Re: Let me help you

And herein lies the problem, you think it must be a personal attack on you.
You lack the ability to even take 5 minutes to look at the topics covered on this site, to see that the DMCA would be the actual focus and have decided your so important they have thrown everything to the wind to attack you.
Self important much?

"I have no incentive to link to my blog since none of you can read it anyway"
And yet you did so anyways.
Funny your webpage appears when one types in the address, and I have the ability to read. Or did you mean that your sad little paywall attempt would deter me?

Re: Re: Re: Re: Let me help you

Funny how folks here can't comment without mocking and put downs. So, you're offended that I identified myself by linking my blog, then threaten to read it anyway? I see that making sense isn't the objective here.

My comments are directed at the original author's claims that a.) my lawyer told me I never had a case (untrue, the evidence shows that) and b.) that I admitted DMCA abuse when, again, the documented evidence shows otherwise. What's the investment in letting misrepresentations stand?

The title of this post is claiming "DMCA abuse" when that has not been established, and conversely, has been rejected by the court's initial opinion. Again, what is the incentive for spinning in the Plaintiff's favor while ignoring the evidence presented? I'm actually curious.

Re: Re: Re: Re: Re: Let me help you

Govern yourself accordingly...

Once again investing 5 minutes of research into things would have saved you heartache in this area.
I'm not a nice person, I know shocking, but I never stooped so low as to post a picture of myself flipping someone off.

The courts initial opinion about the DMCA was wrong according to the EFF and Harvard. I tend to trust them more than a self important blogger with a chip on her shoulder.

Oooh the documented evidence... of which you have provided no links to. You talk and talk and talk... and yet offer nothing to support your claims beyond your word.

Your comments are posted on an open forum, if you wanted to contact the author of the story directly there are much more private ways to do so. But you need the ego rush of posting about how your right, and then you ran into me. Someone who doesn't care who you are, and will point out your being a bit on the obsessive side trying to make sure its all about you. If you can't have an audience it's not that much fun is it?

And now you can go tell all of your blog followers how the mean man was mean to you. The ongoing battle to defend your good name against all of these evil people aligned against you... I'm sure you can make it sound much more drama filled if you try.

Notice you have yet to present any evidence other than your word about a legal situation where you have a vested interest in the outcome and insist it is just being done to spin the world against you. You might want to find an grownup to explain to you that sometimes its not all about you.

(Notice I've managed to insult you in all sorts of ways without having to use any of the tried and true insulting words for women.)

Re: Re: Re: Re: Re: Let me help you

From my reading of your and Dr. Tuteur's blog and Facebook pages, your first lawyer told you had a case. However, this lawyer no longer practices full time. In fact, she is a photographer that works in breastfeeding laws. This was not her field.

Your second lawyer was one said you had no case. And he told this to Dr. Tuteur's lawyer which wrote in up in court documents.

Re: Re: Re: Re: Re: Re: Let me help you

Wow. Keep making things up. There was no "second lawyer." Jake Marcus represented me. She works full time as an attorney. Jake Marcus submitted a sworn affidavit showing that she told me I had a case. We have mountains of evidence showing she told me I had a case. I didn't hire another lawyer until this lawsuit because Jake could not represent me in the state of MA. Where do you get these lies? Thin air, obviously.

Re: Re: Re: Let me help you

There are inaccuracies being spouted here, which seems strange since the author here clearly has access to the evidence filed as public record. For some reason, it's being ignored, which leads me to believe that this is not about reporting the facts of a case but about personally attacking me. If you claim to be reporting on the facts particular to this case, then do your homework. Continuing to report misinformation makes you look non-credible.

This is Techdirt, which, if you read it for more than an hour or so, you'll realize is not about reporting facts. It's about spinning anything and everything, even the tiniest morsel, into Mike's anti-copyright crusade that is based on faith and FUD, not facts. Mike Masnick hates facts, hates being reasonable, and hates approaching anything with any sort of reasonable perspective. It's shoot first, and, well, why bother to ask later. Welcome to Techdirt.

"If that's allowed, then that effectively makes 512(f) a useless law, because all anyone has to say is they considered it before sending a bogus DMCA takedown and they can get away with it. That's clearly not what Congress intended with the law, otherwise why include it at all?"

We have evidence that my attorney thoroughly researched and ultimately rejected the Fair Use claim. Of course the plaintiff's attorneys leave out these little facts, but if that's what you're actually interested in, the evidence of my thorough, good faith belief is there in black and white. That is, if the truth matters to TechDirt.

Re:

So the MPAA, with a membership that sends out millions of DMCA notices that are often flawed, want to avoid your case creating liability for them randomly sending out notices based on single word matches not reviewed by humans.
And its all about them supporting you.

So the most abusive users of the DMCA notice are on your side... good for you.

So then would this be the part that makes your silly slap fight actually cross the line to being a key legal fight shaping up over the legality of DMCA abuses?
So, gasp, maybe its not all about you other than your actions opened the door for a court to issue a ruling that could alter a broken system...

Oh look its that bigger picture that people actually care about beyond your slapfight.

MPAA is a member of HypAA (Hypocritial Assoc of America)

What's even more disingenuous about the MPAA's brief is that it argues that deciding if material is infringing is "too much work" for rightsholders, while we all know that they have argued in other cases that deciding if material is infringing isn't "too much work" for others (e.g., Google).

Re: MPAA is a member of HypAA (Hypocritial Assoc of America)

being a copyright holder is hard.
We only have a monopoly on the content, granted by the public we enjoy screwing over, for 170 years. Do you have any idea how hard it is getting money out of something that is 100 years old!? We need to keep out cash available to keep these works from escaping our grasp until we can wring every possible cent from them... and there are these lawyers who tell us we can make even more money if we find people sharing it online...

I have to state the obvious, that I am sure has already been said, Gina is so reckless and adolescent for getting herself into this in the first place. She is a self proclaimed poor suburban wife in Illinois struggling to make ends meet with her hyphenated husband teacher while battling her anxiety. I would be devastated myself if I ignorantly got myself into such a legal battle because of my own stupid actions. Time and money are precious commodities that no one can afford to waste, except Gina. Whether her sentinel event shananigans regarding DMCA taking notices causes her to lose, or if she somehow gets the case dropped, she doesn't win either way. This is not about her, it is about setting a precedent for future DMCA abuses. Hear that Gina? I work in healthcare in Illinois. You are a label no one wants to hire because of your actions. You would not make a good employee. Too much risk.

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Agreed. Gina, I am not a fan of yours. In fact, you banned me months ago from your Facebook page because I don't kiss your ass when I disagree with you. But please, for your family's sake, shut the F up. Don't dig yourself into a financial hole you may never climb out of over a pissing match with Dr. Amy.

"Shut the F Up?" Who's silencing who now? You seem to think that dramy's got this case all locked up when that doesn't appear to be the case at all. Seems that some people are so desperate to cling to her version of things that they can't bear to admit the truth. That's fine. As long as you know your bias, I can respect that. I thought the author might care that they're glossing over some major facts of the case, but apparently not? I don't visit this site so I don't know the tone, but from what commentors above say, this isn't about reporting at all. So I'll leave you to your hilariously inaccurate narrative.

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"You seem to think that dramy's got this case all locked up when that doesn't appear to be the case at all."

You're right, but for the wrong reasons. You think in black and white terms, but the reality of the situation is that this is an area of law that has never been decided on, as far as your judge is concerned. It's not about the "major facts of the case" but instead the law as your judge, and later, the court of appeals, wishes it to be. Right now, you and Dr. Tuteur are equally at risk of losing, not because of any fact or legal precedent, but instead due to the lack of legal precedent.

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I've tried being politely insulting... it didn't work.

Now to use an old fashioned method that might get through that really thick skull of yours...

YOU SIMPERING MORON, THE PEOPLE ON TECHDIRT DON'T GIVE A FLYING FUCK ABOUT YOU OR YOUR PETTY BITCHFEST.
WE DON'T CARE IF YOU DID OR DIDN'T FILE THIS OR THAT.
WE DON'T CARE THAT YOUR TRYING TO REWRITE YOUR OWN HISTORY TO MAKE YOUR POSITION LOOK BETTER.
WE CARE BECAUSE THIS ASININE LAWSUIT OPENS THE DOOR FOR THE COURTS TO ACTUALLY TRY AND FIX THE FLAWED DMCA PROCESS.
IF YOU COULD PULL YOUR HEAD OUT OF YOUR OWN BIRTH CANAL FOR A MOMENT YOU MIGHT UNDERSTAND THERE ARE OTHER PEOPLE IN THE WORLD WHO DON'T GIVE A FLYING FUCK ABOUT YOU.IT IS NOT ALL ABOUT YOU.
THIS IS NOT THE RIGHT FORUM FOR YOU TO ATTEMPT TO WIN POINTS, YOU IGNORANT PETTY LITTLE PERSON.
YOU ARE A LEGEND IN YOUR OWN MIND WHO WILL BE LONG FORGOTTEN ONCE THIS CASE IS DECIDED, AND THE REST OF THE WORLD CELEBRATES OR MOURNS THE COURTS RULING ON THE ISSUES ABOUT THE DMCA.

In closing, here is the advice from your lawyer your ignoring. SHUT THE HELL UP. Everything you say can be traced as coming from you, and your attempts to spin the narrative will be exposed and the Judge will be able to see these things... Judges dislike people who lie.

I don't care who is right or wrong in your great moral catfight, but I'm starting to think the Dr. on the other side must be a hell of alot smarter than you because she is keeping her mouth shut and not chasing every little blog mention trying to score points in the court of public opinion to keep herself looking important.

Grow the hell up and try to think there is a world outside of your little bubble who doesn't give a crap about you.

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You would think all of this would be of great comfort to the Defendant. We don't want to see you fail because we hate you and love Dr. Tutuer, we want you to fail because your success would be a terrible outcome for society.

New update on Skeptical OB. All of Gina's web bragging of taking Dr Amy's site down and encouraging all her sheeple to file like DMCA take down notices apparently have all been screen cached and available for the judge to review. Her multiple lawyers that she denies having and her intentions that she denies having are all on the web. Yet she still feels she can defend herself. Glad I am smarter than her to step in something so big.

OT to what is really important here,

but it is interesting to watch Gina posting here and trying to function outside the confines of her online echo chamber. I think this is one of the significant hazards of blogging. One gets so used to controlling the information one receives that reality begins to get distorted, at least in the mind of the blogger. I honestly don't think Gina understands the intricacies of this case, and how much damage she is doing to her own reputation.

But what about the....

I've tussled with YouTube over DMCA issues before, and won - with Sony filing the DMCA takedown. Three separate times, for a video demonstrating similarities between two songs, 45 seconds' worth being one they had a copyright for. In my opinion, they violated DMCA each time, but more specifically the second and third time once they failed to take the matter further following the first one.

So I'm intrigued by this battle here. I tend to agree with the assessment that the copyright holder in this case could in good faith file a takedown notice and wait for its "Fair Use" status to be haggled out by the court. I see the problem with the court's response, however most of the talk here seems to be about the right to file in the first place, and having been on the other side of that coin, I still agree with that in principle.

However, and I could have missed it -- I didn't see in this discussion anything about the point that the copyright holder may have actually stated, "Take this to your blog and obsess over it." And the article points out the "implied license" which seems to refer to that. Even if it's snarky -- isn't that explicit permission granted to go ahead and use the photo??

In my own situation, I felt that Sony overstepped the DMCA for failing to assess any Fair Use allowance at all. My video used only a portion of the work and it was used for critical commentary, and also not for any profit (which seems to matter slightly in such cases). My layman's view told me that it properly met the requirements, yet their attorneys simply filed and seemed to ignore that consideration.

In this case, it seems the ENTIRE work -- a photo -- was being used, which also seems to matter slightly in a Fair Use case. And without seeing the full context, I don't know, but might assume, that it was used for "critical commentary," however that could be in question too, if it was not in the right spirit.

So I'm interested in the outcome as to any available recourse given for improper takedowns... but if the case is flawed for "implied consent" which might apply here... the result may not be a landmark ruling. If consent was essentially given, then the DMCA filing was flawed in the first place.

Re: But what about the....

IIRC and I could be being forgetful, a court has previously ruled that an entire work could be republished as fair use. (Righthaven IIRC).

The rightholders never want to have to consider 'Fair Use' because they feel they are the only ones who get to make that decision.. and that decision is no one has any rights unless they pay.

In this case, it appears, that permission was given to use it and then that person decided it was a tool to shut up and shut down someone she dislikes. She encouraged others to join in, from available information, turning it into a weapon to stop anothers speech. It then appears the demands for cash were just about being able to make someone do what she wanted. Because she gloated online there are records of these things despite her protests to the contrary. The original court made a crazy decision about 1 focused bit before there was any submissions on it, and basically removed any chance for anyone to challenge the rightsholders.

The MPAA fears this because they would need to have an actual human reviewing the claims before they are sent out. Currently "they" (cartel members) use automated systems that from a keyword alone generates and sends a DMCA notice. They note how many they filed with Google in their brief, however they manage to ignore the number of these notices Google discards as being idiotic and incorrect. They have managed to force Google to deal with having to sort out their desire to spend less to protect their rights.

Cory Doctorow would be able to sue after the recent DMCA notices demanding the removal of his novel Homeland, by a group trying to protect the rights of the TV series Homeland. They should not be considered as having a good faith basis by matching a keyword as one is a video file and the other is a novel in various non-video containers.

The inherent problem with how the DMCA is handled is that the rightsholders can do no wrong, and even if you can prove they should have known better and did it anyways there is no benefit in fighting. There is no punishment for them to get it wrong, and the target ends up out time, money, effort, legal fees... only to have the next batch of automated notices remove the content again.